IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150004706 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his military records to show he elected Survivor Benefit Plan (SBP) coverage for spouse and children. 2. He states that upon retirement he wished to enroll his spouse into the SBP however, an official at the Fort Sill, OK, Retirement Services Office (RSO) informed him that it was not possible because his spouse did not have a social security number (SSN). By the time his spouse received a SSN it was too late to process the request. 3. The applicant provides a marriage license and his spouse’s military identification and social security cards. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 3 December 1992. He married on 27 March 2013. 2. A DD Form 2656 (Data for Payment of Retired Personnel), dated 6 August 2013, shows he elected children coverage, full retired pay. His spouse concurred with this election and her SSN is listed as “111111111” in Section VII (Dependency Information) of this form. 3. He retired on 31 August 2013. 4. His Defense Finance and Accounting Service (DFAS) record contains: a. A DD Form 2656-6, dated 12 March 2015, which shows he elected to change his SBP coverage to spouse and children, full retired pay. The RSO official indicated in the margin of this document that due to an administrative error the applicant did not have the opportunity to change his SBP election to spouse and child, full coverage, within the first year of marriage. The previous RSO official, incorrectly informed the applicant that he could not elect SBP coverage for his spouse because she did not have a SSN. b. A letter, dated 27 March 2015, from DFAS which states that because he was married with a dependent child at the time of his retirement and elected to exclude his spouse from his SBP at the time of his initial election, he was not able to enroll his spouse. 5. He provides his spouse’s social security card, valid for work only, issued on 8 October 2014. 6. Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 7. Title 10, U.S. Code, section 1448 covers SBP: a. Section 1448(a)(2) (Participants in the plan — Standard annuity participants), the Plan applies to a person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouse’s concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay. b. Section 1448(a)(3)(A) (Elections), spousal consent for certain elections respecting standard annuity. A married person who is eligible to provide a standard annuity may not without the concurrence of the person’s spouse elect not to participate in the Plan; to provide an annuity for the person’s spouse at less than the maximum level; or to provide an annuity for a dependent child but not for the person’s spouse. c. Section 1448(a)(4) (Irrevocability of elections - Standard annuity), an election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay. DISCUSSION AND CONCLUSIONS: 1. The applicant was married at the time of his retirement on 31 August 2013. In connection with his retirement, he was counseled by the RSO and elected children only SBP coverage at the full rate. His spouse concurred with his decision. 2. It appears the Fort Sill, OK, RSO incorrectly informed him that his spouse could not receive SBP benefits because she did not have a SSN and this was confirmed by the current RSO. Subsequent to his retirement the applicant took appropriate and timely steps to obtain a social security card for his spouse; however, DFAS denied his request to change his SBP election. 3. The intent of the SBP is to ensure the survivor(s) of a military retiree are provided reasonable and continuous income replacement in the event of a retiree’s death. Although there is no statutory or regulatory error in his election, due to the incorrect advice provided by the RSO with respect to his election, and as a matter of equity only, his records could be corrected to show he elected SBP coverage for spouse and children based on the full amount before his retirement date. BOARD VOTE: ___x____ ___x____ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant elected spouse and children coverage under SBP on 6 August 2013 and the request was accepted and processed by the appropriate office in a timely manner. 2. The applicant should be aware that this correction will result in additional SBP premium deductions from his retired pay effective the date of his retirement. _______ _ x _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20150004706 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1